CHIEF COMMERCIAL MANAGER, EASTERN RAILWAY vs K.K.Sharma

THIS appeal is directed against the order of the District Forum, Shimla, dated 26.3.1999 whereby the District Forum has ordered for payment of compensation of Rs. 20,000/- to each of the respondents/complainants for deficient service alongwith cost of Rs. 2,000/- each. The appellants/opposite parties have also been held jointly and severally responsible to make such payment.

THE facts which emerge from the pleadings and which are not in dispute, are that the respondents/complainants (hereinafter to be referred to as the complainants) are the University teachers and visited Calcutta in connection with their academic pursuits and they were to return from Calcutta on 11.10.1995. A month earlier on 12.9.1995, they purchased return journey tickets from Howrah to New Delhi at Shimla and the numbers of the tickets were 888957 and 888958 (ticket No. 888957 for 4 persons and 888958 for two persons). On enquiry from the respondents/opposite parties (hereinafter to be referred to as the Railway Authorities) after a week of purchase of the tickets on 12.9.1995 about the reservation, the complainants were informed by the Shimla Railway booking office that reminders on 16.9.1995 and 19.9.1995 have already been sent to the Howrah Railway Station. However, no response has been received from them. THE complainants went to Calcutta and reached Howrah on 4.10.1995 and on reaching there, they made enquiries regarding the reservation for which they have purchased return journey tickets at Shimla, but unfortunately, the concerned officials of the Howrah Railway Authorities informed them that they had no information about the reservation of tickets or the tickets bought by the complainants. THE complainants thereafter the following three days consecutively enquired about the reservation, but with no response from the authorities concerned. Ultimately with a lot of of difficulty, the complainants on 8.10.1995 succeeded in establishing lien with the D.G.M., Howrah Railway Station and then it was found that the reminders about the reservation of births sent from Shimla indeed were received at Howrah Railway Station, but it appears that no action had been taken by the Railway Authorities for reservation in pursuance of such reminders. Admittedly, as stated above, the complainants paid for the tickets of return journey from Howrah to New Delhi on 12.9.1995 and for a month earlier to the journey which was intended to be performed and that they did not get reservation for one month due to sheer negligence and deficient service of the Railway Authorities as would be discussed hereinafter. THEy had to overstay in Calcutta for a day. Faced with this dilemma of not getting reservation for the return journey tickets, they underwent agonising experience and with great difficulty, they managed finances and got reservation in the Airways and on the following day they came by air to Delhi and thereafter further undertook journey from Delhi to Shimla. For such deficient service and negligence on the part of the Railway Authorities concerned, the complainants have claimed compensation of Rs. 4,25,000/- which includes financial loss on account of non-reservation of tickets, mental torture, loss on account of forced air travel and loss account of local travelling and overstay in Calcutta. The Railway Authorities have resisted the claim of the complainants mainly on the ground that Section 15 of the Railway Claims Tribunal Act, 1987 read with Section-13 of the same enactment operates to exclude the jurisdiction of all Courts and authorities including the Consumer Fora and secondly the tickets purchased by the complainants were R.A. i.e. Reservation applied for and mere purchase of tickets did not mean confirmed reservation.

At the outset, we may deal with the question whether Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 excludes the jurisdiction of the Consumer Courts.

IT is settled principle of law that exclusion of jurisdiction of Civil Courts is not to be readily inferred and such exclusion must either be "explicitly expressed or clearly implied. Although the Consumer Fora constituted under the Consumer Protection Act, 1986 are not strictly speaking the Civil Courts, but this principle can equally apply and extended to the Consumer Courts, as the Consumer Fora have necessary trappings of Civil Courts. The question of exclusion of jurisdiction of Consumer Fora in the matter cannot be, therefore, so readily inferred unless such exclusion has been expressly or clearly implied. At this stage, it would be noticed that the complainants have sought compensation for mental torture, loss on account of forced air travel or for overstay in Calcutta and for deficiency in service of not entering their tickets in time deliberately. The claimants had not claimed refund of fares and a part thereof. The jurisdiction of all Courts or other authorities no doubt has been excluded under Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987, the provisions of which may necessarily be quoted as under with a view to examining the matter in the right perspective : "13. Jurisdiction, powers and authorities of Claims Tribunal-(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of the Railways Act,- (a) relating to the responsibility of the Railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for- (i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a Railway Administration for carriage by railway; (ii) compensation payable under Section 82A of the Railways Act or the rules made thereunder; and (b) in respect of the claims for refund of fares or part there of or for refund of any freight paid in respectof animals or goods entrusted to a Railway Administration to be carried by Railway. (1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 124A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the Railway Administration under Section 124A of the said Act or the rules made thereunder. (2) The provisions of the Railways Act, 1989 (24 of 1989) and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act. 15. Bar of jurisdiction-On and from the appointed day, no Court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in (Sub-sections (1) and (1A) of Section 13."

WE have carefully examined these provisions. In this case, the complainants for deficiency of service and negligence on the part of the Railway Authorities, have claimed compensation on account of financial loss for non-reservation of tickets, mental torture, loss on account of forced air travel and loss on account of local travelling and overstay at Calcutta and such relief(s) are not covered by any of the provisions of Sections 13 and 15 of the Railway Claims Tribunal Act nor by the provisions of Railways Act, 1989 as referred to above. The jurisdiction of the Consumer Fora has not been excluded either expressly or impliedly by Sections 13 and 15 and as such we have no hesitation to hold that Consumer Fora have jurisdiction in the matter. The next submission that the reservation applied for (R.A.) does not give a right to get reservation has equally no force. In this context the facts which have come on the record are that the complainants purchased the tickets, in dispute, one month earlier to the intended journey and that reminders have been sent by the Railway Authorities at Shimla to the Railway Authorities in Calcutta for confirmation of reservation which fact was ultimately confirmed by the Railway Authorities, Howrah, but inspite of that no steps were taken for reservation by the Railway Authorities and the complainants were kept on waiting list. Further according to the complainant on 11.10.1995 the date of intended return journey from Howrah to New Delhi, there were 90 berths available in A.C. II tier (Rajdhani Express), inspite of that they were not provided necessary reservation. It goes without saying that the position of reservation is exclusively within the knowledge of the Railway Authorities and onus lies upon them to show that who and how many persons were given reservation on 11.10.1995 and whether they have applied for such reservation earlier to the point of time i.e. 12.9.1995 when the complainants have applied for reservation from Shimla. No position of reservation on the relevant date has been brought on record by the Railway Authorities. The stand of the Railway Authorities that the reservation could not be given as there was heavy rush due to Puja holidays is not acceptable, as this assertion is too vague to be taken into consideration. The version of the complainants on the other hand, appears to us more plausible more particularly when they had applied for such reservation one month earlier to the intended journey from Howrah to Delhi and in the light of what is discussed above. At any rate, the Railway Authorities have failed to discharge their onus and to show that they could not provide reservation to the complainants for return journey from Howrah to Delhi on 11.10.1995 for any valid and cogent reasons. It is no doubt true that merely a person applies for reservation, cannot get reservation as a matter of right, but if the authorities act arbitrarily which we have no doubt in mind, have acted so, such an action cannot be legally sustained. In fact, the arbitrariness, negligence and deficiency is writ large on the face of it and the appellants-Railway Authorities jointly and severally are liable to compensate the complainants under Sections 14(1)(d) and 14(1)(e) of the Consumer Protection Act, 1986. The next question that requires consideration is as to how much compensation should be paid to the complainants in the facts and circumstances of the case. We can very well imagine as to how much agony the complainants have undergone due to non-reservation of tickets. It is also conceivable that the complainants must have suffered financial loss not only in over-staying in the Hotel at Calcutta and repeatedly visiting the Reservation offices at Howrah and Koelaghat, but also have suffered a loss of Rs. 3,000/- per head because of the difference in the fare between railway travel and air travel. The mental agony although cannot be measured exactly in terms of money, but the Consumer Fora can always assess the compensation having regard to the facts and circumstances of the case. Having regard to the overall circumstances enumerated above, we are of the opinion that ends of justice would be met if the complainants are allowed a sum of Rs. 15,000/- each by way of compensation instead of Rs. 20,000/- as awarded by the District Forum and Rs. 2,000/- in all as cost of litigation i.e. Rs. 62,000/- in total.

IN the light of foregoing, the order of the District Forum is partly modified and that the appellants-Railway Authorities are directed to pay damages of Rs. 15,000/- to each of the complainants alongwith total cost quantified at Rs. 2,000/- i.e. Rs. 62,000/- in all. The payment shall be made within two weeks. There is no order as to costs in the appeal. Appeal dismissed.